Death penalty for Terry hits snag

By Tom McLaughlin
News & Record

SoVaNow.com / August 01, 2013

A psychiatric evaluation that James Lloyd Terry is incompetent to stand trial will slow proceedings against the alleged killer of South Boston resident Charlotte Rice, but whether the finding will scotch efforts to give Terry the death penalty remains to be seen.

The court-ordered psychiatric report, the subject of a Monday hearing in Halifax, brought forth a request from prosecutors for a second, separate examination of Terry, who is accused in the April 2011 murder and sexual assault of the 84-year-old Rice at her North Main Street home.

However, Circuit Judge Joel Cunningham denied the motion, citing language in the statute that limits his discretion to order further evaluations.

Establishing the competency of defendants to stand trial — and later, possibly, to stand execution — is a hurdle that prosecutors must clear at every step along the way to win a capital murder conviction, said Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Project, a informational clearinghouse on capital punishment cases. Yet while incompetency may be used as a potential defense for Terry, such a determination at this time is “not a permanent bar to anything,” he said.

“When it comes time for a trial, [a defendant has] to have an understanding of what’s going on” to satisfy due process, said Dieter. From the courts’ standpoint, however, it is possible that a defendant who is initially deemed incompetent can be “lifted up” to a level where a trial can go forward.

“People, through medication and other kinds of treatment, can achieve competency to stand trial,” said Dieter. Even if the incompetency determination sticks, Dieter said, Terry could still be brought back to court if his status changes at any time in the future. “If you don’t get to go to trial, you’re just in a holding pattern” whereby a defendant may remain incarcerated indefinitely. “It could be a month or a year or 10 years.

“[Virginia is] a state where they could come back and seek the death penalty at some point. It’s certainly a death penalty state,” Dieter said.

The decision on whether to declare Terry incompetent ultimately will rest with Judge Cunningham, with the psychiatric recommendations serving as evidence to guide his decision. Following Monday’s back-in-forth in court between lawyers for both sides, the next step in the Terry case is a motions hearing, possibly this month, and later a competency hearing for the judge to decide the matter.

The law sets forth a simple standard for determining competency: A defendant must be able to understand the proceedings against him, and he must be able to communicate with attorneys in his defense. The psychiatric review of Terry, like the rest of his case file, has been sealed by the judge; the reasons why psychiatrists found Terry unable to trial have not been revealed in public.

Petra Haskins, Deputy Commonwealth’s Attorney for Danville and a member of the team of Danville and Pittsylvania prosecutors that is seeking the death penalty in the Terry case, noted that “many people who are initially incompetent are restored to competency even before you have a competency hearing.” She added, “It all depends on what it is and whether it can be fixed.

“Someone can be in a diabetic coma and be unable to understand the proceedings against them,” she said.

Haskins said the commonwealth is hoping to move forward with additional motions at an Aug. 19 hearing in Halifax, but Stephanie Miller, a lawyer with the Virginia Capital Defenders Office who is representing Terry, said it is “not certain” that the date is amenable to the defense.

“There’s been some discussion [of an Aug. 19 hearing] but nothing formally,” she said.

Dieter, with the Death Penalty Information Center, noted that mental competency is an issue that looms large in death penalty cases because “there are a number of stages where mental capacity [of defendants] is critical.” One is during the crime itself — killers can be found not guilty for reasons of insanity — but the mental state of the accused also weighs on trials and potentially the execution itself. At each step, defendants must be deemed competent, either at trial or to stand in punishment for their crimes, although there tends to be “a higher standard for facing trial” because of the complexity involved with court proceedings, he said.

Insanity, mental or physical illness, mental retardation— each can serve as the basis for incompetence, although only retardation is considered permanent and untreatable.

At the request of the courts, psychiatrists are tasked with evaluating whether a defendant falls short of the competence standard — “just because someone claims it doesn’t make it so,” said Dieter — and what steps, if any, can be taken to improve his state of mind to prepare for a trial. “Just a short time is all it takes,” he added.

The latest delay in the Terry murder case, which has been ongoing for more than a year, underscores the challenge with capital punishment trial — to see the process through to the end is an expensive, arduous undertaking.

“Getting the death penalty in a case like this and making it stick has a lot of hurdles in front of it,” said Dieter.

Comments

Anyone who would rape and murder an 84 year old woman is obviously mentally deficient in the first place. Even an imbecile should understand right and wrong.

It's difficult for me to be objective about this as my mother was freinds with Mrs. Rice. I often think it could have as easily been my mother, living alone in a remote area of the county. Thank God Mama passed before she would have had to read this about her friend.

Oh, for the days when Tom Coates was Sheriff. The blind-drunk farmhand who murdered my uncle in his bed and raped my aunt in 1960 didn't hang around on death row for years, benefitting from lawyer-induced delays and living off the state. He went to the chair in less than 2 years- as it should be.